By Dara Kam
NEWS SERVICE OF FLORIDA
TALLAHASSEE — Awaiting a decision from an appellate court, Gov. Rick Scott has scheduled a Wednesday night meeting of the state’s Board of Executive Clemency to address a federal judge’s order that the state revamp its process of restoring felons’ voting rights by Thursday.
Scott late Tuesday directed the board — comprised of the governor and the three Florida Cabinet members, including Attorney General Pam Bondi — to meet at 9:30 p.m. Wednesday if the Atlanta-based 11th U.S. Circuit Court of Appeals does not grant the state’s request to block U.S. District Judge Mark Walker’s order.
In a series of harshly worded rulings, Walker found the state’s vote-restoration process violated First Amendment rights and equal-protection rights of felons. Last month, he gave Scott and the board until Thursday to overhaul what the judge called a “fatally flawed” process and rejected a request by Bondi to put his order on hold.
Scott and the board immediately appealed Walker’s decision and asked the appellate court to put a stay on what the governor’s office branded a “haphazard clemency ruling.”
Scott’s highly unusual move Tuesday night to set a clemency meeting for 9:30 p.m. the following day was designed to comply with a Florida law requiring a 24-hour notice for clemency board meetings.
“This will give the 11th Circuit as much time as possible to issue a ruling, while still allowing the board to meet the lower court’s deadline of April 26th, 2018. We are anticipating that the 11th Circuit will rule soon, but if a stay is not issued, the meeting agenda will be for the board to consider how to respond to the lower court’s decision,” Scott’s press office said in an email late Tuesday.
Details about what the board might consider as a replacement for the current system were not available from Scott’s office late Tuesday.
The board members will meet by telephone, but the public “will have an opportunity to provide input at the beginning of the meeting” in the Cabinet room in the Capitol, according to the email.
The restoration of felons’ rights has long been a controversial legal and political issue in Florida, with critics of the state’s process comparing it to post-Civil War Jim Crow policies designed to keep blacks from casting ballots.
Florida, with about 1.6 million felons, is considered an outlier in a nation where more than three dozen other states automatically restore the right to vote for most felons who have completed their sentences.
After taking office in 2011, Scott and Bondi played key roles in changing the process to effectively make it harder for felons to get their rights restored.
Under the current process, felons must wait five or seven years after their sentences are complete to apply to have rights restored. After applications are filed, the process can take years to complete.
Since the changes went into effect in 2011, Scott — whose support is required for any type of clemency to be granted — and the board have restored the rights of 3,005 of the more than 30,000 convicted felons who’ve applied, according to the Florida Commission on Offender Review. There’s currently a backlog of 10,085 pending applications, according to the commission.
In contrast, more than 155,000 ex-felons had their right to vote automatically restored during the four years of former Gov. Charlie Crist’s tenure, according to court documents in the lawsuit filed by the Fair Elections Legal Network and the law firm Cohen Milstein Sellers & Toll PLLC on behalf of nine felons.
Siding with the plaintiffs, Walker in a March 27 ruling chastised Scott and other state officials and ordered the clemency board to devise a constitutionally sound program with “specific, neutral criteria that excise the risk — and, of course, the actual practice of — any impermissible discrimination, such as race, gender, religion or viewpoint.”
Walker scalded state officials for threatening to do away with the rights-restoration process all together and gave the clemency board until Thursday to “promulgate specific standards and neutral criteria” to replace the current “nebulous criteria, such as the governor’s comfort level.”
Walker also cautioned that there is a risk that the clemency board “may engage in viewpoint discrimination through seemingly neutral rationales” or a “perceived lack of remorse” that “serve as impermissible” masks for censorship.
“Therefore, the board must promulgate specific standards and neutral criteria to direct its decision-making,” Walker ordered in March. The judge did not specify a particular process but ordered that “Florida’s corrected scheme cannot be byzantine or burdensome.”
Arguing that they needed more time to craft new regulations, the state’s lawyers asked Walker to put his decision on hold, again drawing a rebuke from the judge.
“Rather than comply with the requirements of the United States Constitution, defendants continue to insist they can do whatever they want with hundreds of thousands of Floridians’ voting rights and absolutely zero standards,” Walker wrote in a six-page decision April 4. “They ask this court to stay its prior orders. No.”
Scott has steadfastly defended the state’s process, saying it is founded on a 150-year old system enshrined in the state Constitution.
A Scott spokesman, John Tupps, lashed out at the judge after Walker refused to put his order on hold.
“Judge Walker haphazardly ordered elected officials to change decades of practice in a matter of weeks. This is completely reckless and does not give the victims of crimes the voice they deserve,” Tupps said in a statement this month. “The governor will always stand with victims of crimes, not the criminals that commit heinous acts. Let’s remember, these criminals include those convicted of crimes like murder, violence against children and domestic violence. The court of appeals should issue a stay immediately.”
In seeking a stay from the 11th Circuit, Bondi’s lawyers reiterated that the state needs more time to answer a slew of questions regarding the vote-restoration process.
“The issue is not whether the board could unilaterally prescribe new rules in a short span of time … but whether the state’s policymakers and citizenry — including but not limited to the board — should be afforded sufficient time to carefully consider the important issues at hand,” the lawyers wrote.
The legal tangle involving Scott, the federal judge and the felons in the case comes months before Floridians will decide whether felons should automatically have their voting rights restored. A political committee known as Floridians for a Fair Democracy collected enough petitions to put a constitutional amendment on the ballot that would automatically restore voting rights to felons who have served their sentences, completed parole and paid restitution.
Murderers and sex offenders would be excluded. The amendment, if approved by 60 percent of voters, could have an impact on about 600,000 Florida felons, according to supporters of the measure.